United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable Eileen S. Willett United States Magistrate Judge
THE HONORABLE NEIL V. WAKE, SENIOR UNITED STATES DISTRICT
before the Court is Tony Lee Horton's
(“Petitioner”) “Petition under 28 U.S.C.
§ 2254 for a Writ of Habeas Corpus” (the
“Petition”) (Doc. 1). Respondents have filed
their Answer (Doc. 11), and Petitioner has filed a Reply
(Doc. 16) and a “Supplement Authority of Legal
Innocence, Miscarriage of Justice” (Doc. 15). For the
reasons explained herein, it is recommended that the Court
dismiss Grounds One, Two, Three, 4(c), and 4(d) as
procedurally defaulted and deny Grounds 4(a) and 4(b) on the
merits. The undersigned further recommends that the Court
deny Petitioner's request for an evidentiary hearing.
November 7, 2013, a Maricopa County Grand Jury indicted
Petitioner on one count of aggravated assault, a class 3
dangerous felony. (Doc. 1 at 23-24). On April 3, 2014, the
State filed a supervening indictment charging Petitioner with
two counts of aggravated assault, class 3 dangerous felonies,
and one count of disorderly conduct, a class 1 misdemeanor.
(Id. at 28-29). The first aggravated assault count
alleged that on or about September 22, 2013, Petitioner
“using a knife, a deadly weapon or dangerous
instrument, intentionally, knowingly or recklessly caused a
physical injury to [R.C.]” in violation of Arizona law.
(Id.) (emphasis omitted). The second aggravated
assault count alleged that on or about September 22, 2013,
Petitioner “intentionally, knowingly or recklessly
caused a serious physical injury to [R.C.]” in
violation of Arizona law. (Id. at 29).
trial, a jury found Petitioner guilty as charged. (Doc. 12 at
6). The trial court sentenced Petitioner to concurrent
fifteen-year prison terms on the aggravated assault counts
and to thirty-nine days in jail for the disorderly conduct
summarized by the Arizona Court of Appeals, the facts
underlying Petitioner's convictions are as follows:
On September 22, 2013, shortly after R.C.'s family
returned home from church, the family went outside to conduct
footraces between R.C.'s seventeen-year-old son and a
friend. The races were conducted on the street in front of
¶6 At the same time, [Petitioner] was inside preparing
dinner with a small paring knife, when he heard a
“commotion” outside. Because [Petitioner's]
wife was ill, he went outside and asked R.C.'s family to
hold the races somewhere other than the street in front of
his house. R.C. responded, “Man, you know, basically
we're not doing anything. The kids are out here just
having fun. We're running. You know we're not doing
anything.” [Petitioner] announced he was going back
inside his house, and R.C. replied, “You gotta do what
you gotta do, man.” [Petitioner] then returned to his
¶7 Shortly thereafter, the two teenagers ran another
race on the street in front of [Petitioner's] house. When
[Petitioner] realized R.C.'s family had not immediately
left the area, [Petitioner] exited his home with the paring
knife still in his right hand and walked toward R.C., who at
the same time moved toward [Petitioner].
¶8 A neighbor's surveillance video introduced as
evidence at trial indicates that, as the two men confronted
one another on the curb between [Petitioner's] property
and the street, R.C. punched [Petitioner], and [Petitioner]
immediately slashed at R.C. with the knife. A brief
altercation ensued, with R.C. continuing to throw punches and
[Petitioner] swinging the knife at R.C. several times,
cutting R.C.'s head, ear, hand, and chin. The final swing
of the paring knife resulted in the knife blade breaking off
in R.C.'s face before falling to the ground.
¶9 [Petitioner] retreated toward his garage, and R.C.
ran to his home and retrieved a handgun. Brandishing the gun,
R.C. went outside to his driveway, where he could see
[Petitioner] in his garage across the street, and
[Petitioner] could see him. R.C. pointed the gun at
[Petitioner], but eventually went back inside, and both
R.C.'s wife and [Petitioner] called 911 to report the
incident. R.C. and [Petitioner] were separately treated at
local hospitals, and [Petitioner] was later arrested.
(Doc. 12 at 5-6) (footnotes omitted).
Petitioner's appointed counsel could not find a colorable
claim to raise on appeal, Petitioner filed a pro se brief.
(Id. at 37-68). On May 3, 2016, the Arizona Court of
Appeals affirmed Petitioner's convictions and sentences.
(Id. at 3-14). The Arizona Court of Appeals denied
Petitioner's “Motion to Reconsider.”
(Id. at 79-80). The Arizona Supreme Court denied
Petitioner's request for further review. (Id. at
85). On October 1, 2018, the United States Supreme Court
denied Petitioner's Petition for Writ of Certiorari.
(Id. at 87).
October 22, 2015, Petitioner filed a Notice of
Post-Conviction Relief (“PCR”). (Doc. 12-10 at
2). The trial court appointed counsel, who could not find a
colorable issue to raise. (Doc. 13 at 3-4). On January 3,
2017, Petitioner filed a pro se PCR Petition. (Id.
at 10-12). On July 13, 2017, the trial court dismissed the
PCR proceeding. (Id. at 56-58). Petitioner sought
further review by the Arizona Court of Appeals, which granted
review, but denied relief. (Id. at 72-73). The
Arizona Supreme Court denied Petitioner's Petition for
Review. (Doc. 14 at 6).
February 11, 2019, Petitioner timely initiated this federal
habeas proceeding. (Doc. 1). As detailed in the Court's
April 3, 2019 Screening Order, the Petition presents the
following four grounds for habeas relief:
In Ground One, Petitioner alleges invidious discrimination by
the prosecutor and trial court in violation of his First,
Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendment rights.
In Ground Two, Petitioner alleges a violation of the right
not to be subjected to double jeopardy in violation of the
Fifth, Ninth, and Fourteenth Amendments. In Ground Three, he
alleges that his sentence was unconstitutionally enhanced. In
Ground Four, Petitioner alleges that he received ineffective
assistance of counsel in violation of his Fifth, Sixth,
Eighth, Ninth, and Fourteenth Amendment rights.
(Doc. 7 at 2). Respondents have identified and separately
addressed a number of sub-claims contained in Ground Four,
which Respondents have labeled as Grounds 4(a)-(d). (Doc. 11
at 2). This Report and Recommendation addresses all of those
II of this Report and Recommendation pertains to Grounds One,
Two, Three, 4(c), and 4(d). In Section II(B), the undersigned
finds that Grounds One, Two, Three, 4(c), and 4(d) are
unexhausted because Petitioner did not fairly present them in
his state court proceedings. The undersigned further finds in
Section II(C) that all of the unexhausted claims are
procedurally defaulted because Petitioner would be precluded
by the Arizona Rules of Criminal Procedure from returning to
state court in an attempt to exhaust them. Section II(D)
explains that the procedural defaults should not be excused
under the cause and prejudice and miscarriage of justice
Section III, the undersigned reviews the ineffective
assistance of counsel claims presented in Grounds 4(a) and
4(b) and explains why they are without merit. Finally,
Section IV explains the undersigned's recommendation that
the Court deny Petitioner's request for an evidentiary
GROUNDS ONE, TWO, THREE, 4(c), AND 4(d) ARE PROCEDURALLY
Legal Standards Regarding Procedurally Defaulted Habeas
well-settled that a “state prisoner must normally
exhaust available state remedies before a writ of habeas
corpus can be granted by the federal courts.”
Duckworth v. Serrano, 454 U.S. 1, 3 (1981); see
also Picard v. Connor, 404 U.S. 270, 275 (1971)
(“It has been settled since Ex parte Royall,
117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), that a state
prisoner must normally exhaust available state judicial
remedies before a federal court will entertain his petition
for habeas corpus.”). The rationale for the
doctrine relates to the policy of federal-state comity.
Picard, 404 U.S. at 275 (1971). The comity policy is
designed to give a state the initial opportunity to review
and correct alleged federal rights violations of its state
prisoners. Id. In the U.S. Supreme Court's
words, “it would be unseemly in our dual system of
government for a federal district court to upset a state
court conviction without an opportunity to the state courts
to correct a constitutional violation.” Darr v.
Burford, 339 U.S. 200, 204 (1950); see also Reed v.
Ross, 468 U.S. 1, 11 (1984) (“[W]e have long
recognized that in some circumstances considerations of
comity and concerns for the orderly administration of
criminal justice require a federal court to forgo the
exercise of its habeas corpus power.”) (citations and
internal quotation marks omitted).
exhaustion doctrine is codified at 28 U.S.C. § 2254.
That statute provides that a habeas petition may not be
granted unless the petitioner has (i) “exhausted”
the available state court remedies; (ii) shown that there is
an “absence of available State corrective
process”; or (iii) shown that “circumstances
exist that render such process ineffective to protect the
rights of the applicant.” 28 U.S.C. § 2254(b)(1).
law has clarified that in order to “exhaust”
state court remedies, a petitioner's federal claims must
have been “fully and fairly presented” in state
court. Woods v. Sinclair, 764 F.3d 1109, 1129 (9th
Cir. 2014). To “fully and fairly present” a
federal claim, a petitioner must present both (i) the
operative facts and (ii) the federal legal theory on which
his or her claim is based. This test turns on whether a
petitioner “explicitly alerted” a state court
that he or she was making a federal constitutional claim.
Galvan v. Alaska Department of Corrections, 397 F.3d
1198, 1204-05 (9th Cir. 2005). “It is not enough that
all the facts necessary to support the federal claim were
before the state courts or that a somewhat similar state law
claim was made.” Anderson v. Harless, 459 U.S.
4, 6 (1982) (citation omitted); see also Lyons v.
Crawford, 232 F.3d 666, 668 (9th Cir. 2000), as
modified by 247 F.3d 904 (9th Cir. 2001) (federal basis
of a claim must be “explicit either by citing federal
law or the decisions of federal courts, even if the federal
basis is self-evident or the underlying claim would be
decided under state law on the same considerations that would
control resolution of the claim on federal grounds”).
Procedural Default Doctrine
claim was presented in state court, and the court expressly
invoked a state procedural rule in denying relief, then the
claim is procedurally defaulted in a federal habeas
proceeding. See, e.g., Zichko v. Idaho, 247 F.3d
1015, 1021 (9th Cir. 2001). Even if a claim was not presented
in state court, a claim may be procedurally defaulted in a
federal habeas proceeding if the claim would now be barred in
state court under the state's procedural rules. See,
e.g., Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir.
to the rationale of the exhaustion doctrine, the procedural
default doctrine is rooted in the general principle that
federal courts will not disturb state court judgments based
on adequate and independent state grounds. Dretke v.
Haley, 541 U.S. 386, 392 (2004). A habeas petitioner who
has failed to meet the state's procedural requirements
for presenting his or her federal claims has deprived the
state courts of an opportunity to address those claims in the
first instance. Coleman v. Thompson, 501 U.S. 722,
alluded to above, a procedural default determination requires
a finding that the relevant state procedural rule is an
adequate and independent rule. See id. at 729-30. An
adequate and independent state rule is clear, consistently
applied, and well-established at the time of a
petitioner's purported default. Greenway v.
Schriro, 653 F.3d 790, 797-98 (9th Cir. 2011); see
also Calderon v. U.S. Dist. Court (Hayes), 103 F.3d 72,
74-75 (9th Cir. 1996). An independent state rule cannot be
interwoven with federal law. See Ake v. Oklahoma,
470 U.S. 68, 75 (1985). The ultimate burden of proving the
adequacy of a state procedural bar is on the state.
Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir.
2003). If the state meets its burden, a petitioner may
overcome a procedural default by proving one of two
first exception, the petitioner must show cause for the
default and actual prejudice as a result of the alleged
violation of federal law. Hurles v. Ryan, 752 F.3d
768, 780 (9th Cir. 2014). To demonstrate “cause,
” a petitioner must show that some objective factor
external to the petitioner impeded his or her efforts to
comply with the state's procedural rules. See Murray
v. Carrier, 477 U.S. 478, 488 (1986); Robinson v.
Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004). To
demonstrate “prejudice, ” the petitioner must
show that the alleged constitutional violation “worked
to his actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions.”
United States v. Frady, 456 U.S. 152, 170 (1982);
see also Carrier, 477 ...